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Friday, June 8, 2018

The ingredients of common intention on the part of the accused to do away with the life of the deceased Smt. Manjula and Kumari Radhika are not forthcoming from the evidence on record. Same is also the finding by the Trial Court and the High Court. 9. It is no doubt that the name of the appellant is found in all the three wound certificates, i.e., Ex. P6 to P8, as the assailant. 8 But, in view of the specific ocular testimony of PW.23 that the appellant has assaulted PW.23 only, (mother­in­law of the deceased Smt. Manjula and the foster mother of Kumari Radhika), aforementioned note in the wound certificates loses its importance.

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NON­REPORATABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1022 OF 2011
JAYASWAMY ...APPELLANT
VERSUS
STATE OF KARNATAKA ...RESPONDENTS
JUDGMENT
MOHAN M. SHANTANAGOUDAR, J.
By the impugned judgment dated 12.08.2010 in Criminal
Appeal No. 1498 of 2004, the High Court has reversed the
judgment of acquittal passed by the Trial Court in S.C. No.
143/1994 insofar as the appellant (accused No.1) is concerned,
and consequently convicted the appellant for the offences under
Sections 302 and 326 of IPC. The High Court further, confirmed
the judgment and order of acquittal passed by the Trial Court
insofar as it relates to accused Nos. 2 to 5.
2. The case of the prosecution in brief is that at about 4:30 pm
on 15.01.1994, the accused Nos. 1 to 3 (including the appellant)
along with accused Nos.4 and 5, with the common intention of
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committing murder of deceased persons, namely Kumari Radhika
(aged about 11 years) and Smt. Manjula, as well as to cause
grievous hurt to the informant Smt. Honnamma, trespassed into
the house of Smt. Honnamma and quarrelled with her in filthy
language; the appellant assaulted the informant with a chopper
on her head and hands and caused grievous injuries to her; the
accused No.2 assaulted the deceased Smt. Manjula with a
chopper; the accused No.3 assaulted the deceased Kumari
Radhika with a chopper on her head. Due to the said assault,
Kumari Radhika sustained grievous injuries as a result of which
she died at 7:15 p.m. on 15.01.1994 at B.M. Hospital, Mysore.
Smt. Manjula also sustained grievous injuries and succumbed to
the same at 2:35 p.m. on 04.02.1994. Based on the information
lodged by the injured eye­witness Smt. Honnamma, the crime
came to be registered. All the five accused were tried for the
offences punishable under Sections 326, 302, and 114 read with
Section 34, IPC. The Trial Court acquitted all the accused, after
evaluation of the material on record and after hearing both the
parties. As mentioned supra, the High Court confirmed the
judgment of acquittal passed by the Trial Court in respect of the
accused Nos. 2 to 5. However, the High Court set aside the
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judgment of the Trial Court acquitting the appellant and
consequently convicted him for the offences punishable under
Sections 302 and 326, IPC.
3 Mr. Shanthkumar V. Mahale, advocate, appearing on behalf
of the appellant, having taken us through the material on record
submits that the High Court reversed the well­considered
judgment of the Sessions Court qua the appellant herein even
though there is no cogent evidence against the appellant. The
first appellate court should not have interfered with the judgment
of acquittal, particularly when the judgment of acquittal was
based on settled principles of law as well as on due appreciation
of the evidence on record. The judgment of acquittal cannot be
said to be perverse, and the view taken by the Trial Court is one
of the possible views under the facts and circumstances of the
case, hence the High Court should not have interfered with the
judgment of the Trial Court. Per contra, Mr. Joseph Aristotle S.,
advocate for the State, argued in support of the judgment of the
High Court.
4 As mentioned supra, the informant Smt. Honnamma is an
injured eye­witness. The first information report details the
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sequence of events which took place on the date of the incident,
i.e., on 15.01.1994. Apart from narrating the incident, it narrates
about motive for commission of offence also, i.e., there was a
dispute between the accused and the informant with regard to
partition of the property. The first information discloses that at
4:00 p.m. on 15.01.1994, the appellant and his elder brother,
Puttaswamy and Rajesh came to the house of the informant and
started quarrelling with her asking as to why she was not giving
the property to Jayamma (accused No.5), sister of the appellant.
So saying, the appellant assaulted the informant, Smt.
Honnamma (PW. 23) with a chopper on her head and hands.
Puttaswamy (accused No.2) assaulted Smt. Manjula (who was
present in the house) with a chopper on her head three to four
times. H.M. Rajesh (accused No.3) assaulted Kumari Radhika
(minor­who was also present in the house of informant) with a
chopper on her head. No overt acts are attributed to Shankar
(accused No.4) and Jayamma (accused No.5) in the first
information. It is needless to observe that specific allegations are
found as mentioned supra against Jayaswamy (the appellant),
Puttaswamy (accused No.2) and H.M. Rajesh (accused No.3) only.
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5. In order to prove its allegations, the prosecution examined
31 witnesses. However, the important witness in the matter is
PW.23 i.e., the injured eye­witness/informant Smt. Honnamma.
The case of the prosecution, thus, fully and mainly centres
around the evidence of Smt. Honnamma (PW.23), who survived
after the assault by the appellant. The doctor (PW.7) examined
Smt. Honnamma, Kumari Radhika and Smt. Manjula initially
and issued wound certificates (Ex. P­7, Ex. P­6 and Ex. P­8
respectively). PW.14 (doctor) conducted the post­mortem
examination of the dead body of Manjula. The doctor (PW.30)
conducted the post­mortem examination of the dead body of
Radhika. None of the witnesses (except PW.23) are eye­witnesses;
the other witnesses examined are either panch witnesses or
police officials.
6. It is not in dispute that the incident had taken place inside
the house of Smt. Honnamma (PW.23), therefore, it is but natural
that there was no other eye­witness except PW.23. Three persons
sustained injuries and out of them two persons, namely Kumari
Radhika and Smt. Manjula, succumbed to the injuries. The
incident has taken place in broad daylight at about 4:30 p.m. It
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is not the story of the prosecution that the accused persons
closed the door after trespassing into the house and committed
the offences secretly; on the other hand, according to the
prosecution, the accused have committed the offence openly.
None of the neighbouring witnesses had come for the help of the
deceased and injured. Although the prosecution examined two
neighbouring witnesses, they are not the eye­witnesses.
7. Looking to the evidence on record, the Trial Court as well as
the High Court were justified in concluding that the incident had
taken place for the reason of a property dispute.
8. Specific overt act had been attributed to the appellant by
the informant (PW.23) not only in her first information but also in
her deposition. She has categorically deposed that the appellant
assaulted her with chopper; neither did the appellant assault the
two deceased, nor did he instigate others to assault the two
deceased. PW.23 has further specifically stated in the first
information as well as deposed before the Court that accused
No.2, Puttaswamy assaulted the deceased Smt. Manjula with a
chopper and accused No.3 assaulted Kumari Radhika with a
chopper. Kumari Radhika expired on the very day, i.e.,
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15.01.1994 at 7:15 p.m. in B.M. Hospital whereas Smt. Manjula
succumbed to her injuries at 2:35 p.m. on 04.02.1994. The overt
acts specified by PW.23 both in first information and her
evidence reveal that there is no ambiguity in the deposition of
PW.23 with regard to the overt acts of each of the accused. The
acts of each of these accused Nos. 1 to 3 are compartmentalised,
i.e., accused No.1 assaulted the complainant with a chopper,
whereas accused No.2 assaulted Smt. Manjula with a chopper,
and accused No.3 assaulted Kumari Radhika with a chopper. No
allegations are found against the accused Nos.4 and 5. No overt
acts are found against the appellant in so far as assault on both
the deceased. Except specifying that the appellant assaulted the
informant (PW.23), no other allegations are found against him.
The ingredients of common intention on the part of the accused
to do away with the life of the deceased Smt. Manjula and
Kumari Radhika are not forthcoming from the evidence on
record. Same is also the finding by the Trial Court and the High
Court.
9. It is no doubt that the name of the appellant is found in all
the three wound certificates, i.e., Ex. P6 to P8, as the assailant.
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But, in view of the specific ocular testimony of PW.23 that the
appellant has assaulted PW.23 only, (mother­in­law of the
deceased Smt. Manjula and the foster mother of Kumari
Radhika), aforementioned note in the wound certificates loses its
importance. It is relevant to note that PW.23 has fully supported
the case of the prosecution and she is the only eye­witness.
Moreover, her evidence is consistent with her averments found in
the first information. We do not find any reason to discard the
evidence of PW.23, more particularly as her evidence is
unambiguous, cogent and consistent with the case of the
prosecution. By relying on the wound certificates, the High Court,
as mentioned supra, convicted the appellant while confirming the
acquittal of the other accused. Absolutely no reason, much less
valid reason, is assigned by the High Court, to reverse the
judgment of acquittal passed in favour of appellant.
10. It is by now well settled that the Appellate Court hearing the
appeal filed against the judgment and order of acquittal will not
overrule or otherwise disturb the Trial Court’s acquittal if the
Appellate Court does not find substantial and compelling reasons
for doing so. If the Trial Court’s conclusion with regard to the
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facts is palpably wrong; if the Trial Court’s decision was based on
erroneous view of law; if the Trial Court’s judgment is likely to
result in grave miscarriage of justice; if the entire approach of the
Trial Court in dealing with the evidence was patently illegal; if the
Trial Court judgment was manifestly unjust and unreasonable;
and if the Trial Court has ignored the evidence or misread the
material evidence or has ignored material documents like dying
declaration/report of the ballistic expert etc. the same may be
construed as substantial and compelling reasons and the first
appellate court may interfere in the order of acquittal. However, if
the view taken by the Trial Court while acquitting the accused is
one of the possible views under the facts and circumstances of
the case, the Appellate Court generally will not interfere with the
order of acquittal particularly in the absence of the
aforementioned factors. It is relevant to note the observations of
this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha
And Ors., (2003) 12 SCC 606, which reads thus:
“21. There is no embargo on the appellate court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal
shall not be interfered with because the presumption
of innocence of the accused is further strengthened by
acquittal. The golden thread which runs through the
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web of administration of justice in criminal cases is
that if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is
favourable to the accused should be adopted. The
paramount consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is
no less than from the conviction of an innocent. In a
case where admissible evidence is ignored, a duty is
cast upon the appellate court to reappreciate the
evidence in a case where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused committed any offence or
not.”
(emphasis supplied)
11. The High Court as mentioned Supra, while convicting the
appellant has confirmed the judgment of acquittal passed in
favour of the accused Nos.2 to 5. Their acquittal as confirmed by
the High Court is not questioned by the State before this Court.
Thus, the judgment of the High Court acquitting accused Nos.2
to 5 has attained finality. Therefore, it is clear that the Trial
Court and the High Court have, on facts, not believed the case of
the prosecution in respect of the assault by the accused Nos. 2
and 3. As mentioned supra, the specific case of the prosecution is
that accused Nos.2 and 3 assaulted the deceased Smt. Manjula
and Radhika consequent to which they lost their lives. Absolutely
no material is found against the appellant herein to convict him
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for the offences under Section 302 IPC inasmuch as he had not
played any role in the death of the two deceased. In addition to
the same, both the Courts have, on facts concluded that there
was no common intention on the part of the accused, in
commission of crime.
12. It is not in dispute that the injured, Smt. Honnamma
(PW.23) sustained grievous injury as a result of assault by the
appellant. She was referred to a neurologist for an expert opinion
inasmuch as she had sustained an incised wound over the left
parietal area. She had also sustained a fracture at the lower end
of her right forearm. Since the evidence of PW.23 in respect of an
overt act by the appellant in injuring Smt. Honnamma is
believable, in our considered opinion, the High Court was
justified in convicting the appellant for the offence under Section
326, IPC, but was not justified in convicting the appellant for the
offence under Section 302, IPC. Accordingly, the appeal is
allowed in part, in terms of the following order:
(a) The appellant is acquitted of the offence punishable under
Section 302, IPC. Consequently, the judgment of the High Court
convicting him for the said offence stands set aside.
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(b) The judgment passed by the High Court convicting the
appellant for the offence under Section 326 IPC and sentencing
him for imprisonment of 7 years stands confirmed and is
imposed a fine of Rs. 10,000/­. In default of deposit/payment of
fine (if not already deposited) within eight weeks from today, the
appellant shall undergo imprisonment for two years additionally.
The fine, if recovered, shall be paid to PW.23 (informantHonnamma)
as compensation.
(c) It is brought to our notice that the appellant has already
undergone imprisonment for 11 years. The appellant is also
entitled to set­off the period of imprisonment already undergone
with the sentence of seven years imposed. In view of the same,
the appellant shall be released forthwith, if he is not required in
any other matter.
..................................J
L. NAGESWARA RAO
.................................J
MOHAN M. SHANTANAGOUDAR
New Delhi
June 01, 2018